issues this Advisory in response to the unjustified and illegal killings of 57 persons in Barangay Saniag, Ampatuan town on 23 November 2009, and to the actions that have been taken by various actors in response to the incident including the fact that the President of the Philippines has declared “a state of emergency in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of preventing and suppressing lawless violence in the aforesaid areas”; and “a state of martial law in the province of Maguindanao except for the identified areas of the Moro Islamic Liberation Front as referred to in the implementing operational guidelines of the GRP-MILF agreement on the General Cessation of Hostilities,” as well as the accompanying suspension of the privilege of the writ of habeas corpus in Maguindanao for the duration of the state of martial law.

The Commission reminds that the week from December 4 to 10 is, by law, observed as National Human Rights Awareness Week in the Philippines and December 10 is International Human Rights Day.

On the need for effective, timely, unequivocal and rights-based actions to protect human rights and bring violators to justice

The Commission on Human Rights unequivocally condemns the killings of 57 persons including women and children in Barangay Saniag, Ampatuan town on 23 November 2009, in the incident now known around the world as the “Maguindanao Massacres” as violations of the rights to life and to security of person for every individual that was killed.

The Commission urges all relevant government bodies and branches to vigorously perform their mandates in the Constitution and in law to bring the perpetrators to justice as soon as possible, with due process of law and respect for the human rights of victims, suspects, witnesses, the families of victims, and possible informants.

The magnitude of the incident and the need to administer justice swiftly does not justify any shortcuts in law that would lead to further violations of fundamental freedoms.

The human rights-based approach to justice takes into account the necessity of punishing crimes while also giving restitution and assistance to the victims and their families. It protects and respects the rights of all parties, even those suspected of crimes or persons who might have information about crimes or suspects, with conscious efforts to protect and respect the rights of vulnerable groups, such as women, children, and indigenous persons.

The CHR calls on the various agencies to give as much attention to the need for assistance including legal, medical, psycho-social and economic assistance to the victims and their families. Even suspects and witnesses will need legal representation with the assistance from the Public Attorney’s Office (PAO) and legal groups. Many of the initiatives taken in 2007 to address extrajudicial killings and assist the families of victims would be applicable in Maguindanao.

The Commission takes note that the executive and judiciary branches have, in the two weeks following the incident, taken steps crucial to the investigation and prosecution of the persons responsible for the killings. Search warrants have been issued, a mass grave has been excavated, witnesses have been identified and questioned, some suspects have been taken into custody. While the manner and timeliness of some of these actions may leave room for improvement, it must be recognized that the pillars of justice are acting. The CHR urges all to perform their respective functions to the best of their ability with the fullest respect for the law and human rights.

Where gaps in law and process exist that could delay or even derail the search for truth and justice, policymakers and leaders are exhorted to immediately take initiatives and harness creative solution-finding to fill these gaps in manners that fulfill the provisions of the Philippine constitution and international human rights standards.

While conducting its own investigations and monitoring all pillars of the criminal justice system to ensure proper legal remedies, the CHR reminds all that the zeal to resolve these cases should not give way to practices that in themselves violate fundamental freedoms, such as:

the taking into custody without following the legal requirements of suspects or persons who might have material information, including families of victims, possible accomplices or co-members of organizations that might be involved in the crimes/violations being investigated;

the collection of information or intelligence through means prohibited by law and human rights standards including wire tapping, warrantless searches and seizures; and

the physical, mental or emotional maltreatment of persons in custody or

in detention for the purpose of obtaining information or confessions or for coercion.

The CHR reminds that these practices, among others, are prohibited by the International Covenant on Civil and Political Rights, Article III of the 1987 Constitution also known as the Bill of Rights, and various Philippine statutes.

Acts of physical, mental or emotional maltreatment for the purpose of obtaining information or confessions or for coercion can never be justified. They are specifically prohibited in the International Convention against Torture (CAT) to which the Philippines has been a State Party since 1987 and are now criminalized in the new Anti-Torture Act signed into law just this past November. According to CAT, the right to be free from torture and other cruel, inhuman and degrading treatment is a right that is non-derogable, i.e. it can never be removed or reduced for any reason or circumstance, not even states of emergency or martial law.

The Commission on Human Rights urges the Office of the President and Congress to seriously reconsider the declaration of martial law in Maguindanao because this is not necessarily the most effective way to resolve the killings, maintain or restore peace and order, and prevent further violence. The police, the judiciary, the CHR, the Department of Justice and others have already taken action to respond to the killings and prevent violence that could result from the massacre. They continue to do so with effect and thus the legal basis for declaring martial law is very weak.

In fact, martial law exponentially raises the risks of various human rights violations. The extraordinary powers accorded to uniformed services under martial law may be misunderstood, misapplied, or even abused by certain individuals.

One legacy of the Marcos martial law years is the impunity that still finds expression in the extrajudicial killings, torture, disappearances, ill-treatment of suspects, and failures to observe basic rights of the accused that have been perpetrated in recent years by rogue elements in uniform.

Such incidents happened between 2000 and 2009 even without martial law or a state of emergency in the Philippines . The continuing need to protect national security from internal insurgencies and from international terrorists has been used by some as an excuse for measures that go against legal and human rights standards. The conferment of additional powers to the military and the suspension of the privilege of the writ of habeas corpus (one of the most basic human rights protections) adds to the dangers of violations by those who hold this mindset, who believe that the end justifies the means.

The CHR reminds that the application of martial law during the administration of former President Ferdinand E. Marcos was anathema to the principles of democracy and human rights standards. Despite the fact that the Universal Declaration of Human Rights was even then in force in the Philippines as part of the law of the land under the principle of incorporation, there were many abuses such as arbitrary detention, enforced disappearances, repression of the press, repression of the right to public assembly, torture and extrajudicial killings.

Although the incumbent President may not intend the same method of martial law, some members of the armed forces, the intelligence services and the law enforcement agencies could – especially without very clear and express guidelines that are strictly enforced to protect human rights - mistake martial law in 2009 to mean martial law a la 1972.

The CHR takes issue with the legality of the declaration of martial law and its continued application.

Under the 1987 Constitution, martial law can only be declared “in case of invasion or rebellion, when public safety demands it”. Rebellion requires that there is at least a taking up of arms publicly directed against an existing government. “Imminent”, “threatened” or “possible” taking up for arms, as cited by representatives of the Office of the President, fail to meet the stringent requirements of the Constitution. The law requires actual invasion or rebellion, overt taking up of arms, not an amassing of arms.

The President having submitted a report to Congress on her Martial Law declaration, the Constitution demands a discussion of this grave and serious issue by the elected representatives of the people, as a check and balance to the executive branch.

The CHR hopes that the President and/or Congress will take heed of this Advisory and revoke both the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus.

Pending the hoped-for revocation, the Commission reminds all of the limitations to martial law imposed by the Constitution:

The Constitution remains in operation;

Civil courts and legislative assemblies continue their functions and are not supplanted;

Since civil courts are obviously able to function even in Maguindanao, military courts and agencies do not have jurisdiction over civilians;

The suspension of the privilege of the writ of shall apply only to persons charged for rebellion or offenses inherent in or directly connected with invasion;

During the suspension, any person thus arrested or detained (i.e. for rebellion or invasion) shall be judicially charged within three days otherwise he shall be released; and

The proclamation of martial law and the suspension of the privilege of the writ shall last only 60 days, unless extended by Congress.

The Commission on Human Rights will continue to exercise its investigative, monitoring, assistance, visitorial, advisory and other functions in all areas of the Philippines, whether under martial law or not.

PROTECTING AND RESPECTING HUMAN RIGHTS DURING THIS PERIOD

The Commission on Human Rights has already mobilized to Maguindanao a composite Quick Response Team composed of investigators, lawyers and doctors from CHR central and regional offices, assisted by forensic anthropology experts from the Peruvian Forensic Anthropology Team (EPAF). They have excavated remains from a mass grave and interviewed witnesses and the families of victims. Much more work remains to be done.

From December 16 to 18, the Commission en banc will go to Mindanao to hold a public inquiry into the events and situation in Maguindanao. All government office holders including those from the local government, the executive branch of the national government, the military, the police are exhorted to attend when summoned, in accordance with the Constitution. The CHR also invites witnesses and victims to provide statements not only on complaints but also on the sort of assistance needed. Civil society organizations are also welcome.

The CHR is committed to dedicating much of its limited resources to the area to continue looking into the causes and effects of the November 23 killings, to monitor the performance of government actors and non-state actors in this fragile situation, including but not limited to the criminal justice processes, and to protect human rights in Maguindanao while martial law remains in place.

This will include compilations of complaints and requests, visits to detention centers, dialogues with military and law enforcement leaders on the ground and with civil society.

The Commission calls on all parties to respect the work of the independent CHR, and to respect the rights and security of the personnel who are working in difficult conditions for the sake of truth and justice. Human rights advocates are often in danger of having their own rights violated.

The Commission also calls on:

The Presidential Human Rights Committee , chaired by the Executive Secretary - to closely coordinate and monitor all executive branch agencies for the conscious emphasis on human rights protections during this crisis, including rules of engagement for the PNP and the AFP;

The AFP, the PNP, the National Bureau of Investigation and the National Security Council to immediately make operational rules and guidelines for compliance with human rights standards and international humanitarian law, including the rights of the accused and command responsibility, including disciplinary measures;

to immediately inform all personnel on the ground of the applicable laws, guidelines and rules abovestated, including disciplinary measures;

to cooperate and coordinate with the Commission on Human Rights as required by the Constitution, including access to detention centers or facilities, whether formal or ad hoc, temporary or permanent;

to record, as required by the Convention against Torture and the Anti-Torture Act, the names of all persons taken into custody including the place of detention/custody, the date of detention/custody, reasons therefor, and date of release and name of person to whom released;

to report immediately, or on a daily basis, to the CHR the names of all persons taken into custody and/or detention and the abovelisted details;

to take all precautions to respect the professional media practitioners in the practice of their profession, within the limits of the necessities of public order and public safety; and

to immediately mobilize and strengthen Human Rights offices/desks/bureaus, as well as the bureaus and offices for Indigenous Peoples on the ground to receive complaints and to extend assistance to vulnerable persons.

The Judiciary – to ensure that the relevant regional trial courts remain operative and manned by their appointed judges so that the civilian court system continues to function even in a period of martial law;

to closely monitor regional trial courts in Maguindanao and nearby localities, and ensure that the judges continue to place the highest priority on motions, pleadings, and petitions, including those for search and arrest warrants related to the investigation and prosecution of the Maguindanao massacre and related to martial law in Maguindanao, and that they calendar these in a timely manner;

that in all instances, the rule of law and human rights standards are most closely protected and faithfully implemented, including the Rules of Court, such as the rule on the writ of amparo and the writ of habeas data; and

that where local judges fail to discharge these duties in a timely or lawful manner, including the reluctance to decide on applications for warrants, the Supreme Court, having “administrative supervision over all courts and the personnel thereof,” should promptly issue instructions, guidelines and policies to address these obstacles and gaps, including the assignment of “judges of lower courts to other stations as public interest may require,” and institute appropriate disciplinary action against any judges who fail to discharge these duties or apply the current laws.

The Department of Justice – to mobilize the special team of prosecutors for extrajudicial killings from Manila to directly take charge of assembling prosecution cases regarding the Maguindanao massacres;

to implement A.O. 181, issued in July 2007, and closely coordinate with the PNP and other investigating agencies at all stages of the investigation and prosecution of the abovementioned cases for the building of strong prosecution case briefs; and

to mobilize Quick Response Teams from the Public Attorney’s Office to provide legal assistance to complainants, to witnesses and to suspects in cases related to the Maguindanao massacre.

The Department of Social Welfare and Development, the Office of the Presidential Adviser on the Peace Processes and the National Disaster Coordinating Council - to immediately mobilize and strengthen offices/desks/bureaus/teams on the ground to receive complaints and to extend assistance to vulnerable persons including internally displaced persons who are already fleeing their homes.

The Media – to responsibly report on current events with balance, objectivity, and respect for human rights;

to respect the right to dignity and privacy of all individuals involved in the Maguindanao massacre and the current situation, including the regulations not to have suspects paraded, not to name the victims of sexual attacks, and not to give the addresses of sensitive information sources, or the location of sensitive operations (until after the operation is over);

to cooperate with law enforcement officials during operations; the international community recognizes that the right to information has to be balanced with public order, public safety and national security, hence it is allowed to keep some documents unavailable for a period of time;

to take their own precautions for their own safety and those of their teams; putting subordinate team mates in harm’s way does not respect their rights to security of person and even their right to life ; and

to share with the CHR any reports of possible human rights violations or risks that come to their attention.

Non-State Actors - to respect civilian authority and civilian processes even when martial law is in effect;

to respect all ceasefire agreements and continue with all peace processes;

to refrain from escalating violence and crime in the region;

to report to the CHR and the Joint Monitoring Committee any violations of human rights and international humanitarian law; and

to provide all protections and assistance possible to vulnerable sectors including women, children, indigenous peoples, wounded, persons with disabilities and internally displaced persons.